Employee Working For You? You Say "No", LinkedIn Says "Yes"

by Cozen O'Connor

Those loyal readers of this blog know that the focus tends to be on what your company can and cannot do regarding social media use by potential employees (i.e., applicants) or current employees. But there is a third category of employees that warrant a share of the spotlight here: former employees.

Like some of the prior issues in this blog, such as addressing who maintains ownership of social media accounts and followers upon an employee’s separation, how your company proceeds with respect to what an individual who no longer works for your company says or does through social media is of vital importance for you to consider as well.

Which brings me to the interesting decision in Jefferson Audio Visual Systems, Inc. v. Gunnar Light from a federal court in Louisville, Kentucky. The defendant Light was a Managing Director of International Sales for JAVS (the plaintiff employer). JAVS asked Light to meet with the company’s sales agent in South Africa to arrange for a potentially lucrative sale of audiovisual systems. Unfortunately, according to the complaint, Light made several defamatory statements to the sales agent about JAVS during his meeting, which resulted in a mere $150,000 sale, rather than the $20 million in gross revenue that the company had anticipated. Shortly after, JAVS fired Light and then filed a lawsuit against Light alleging fraud, defamation, and other claims. Light sought early dismissal of the lawsuit.

Of interest here is JAVS’ claim for “fraudulent misrepresentation”:

"JAVS claims that for several months following Light’s May 9, 2011 termination from JAVS, Light falsely represented on social media outlets, such as LinkedIn, that he held the positions as JAVS’ International Managing Director after his date of termination.”

It apparently took three company requests (and threats) before Light changed his profile page to remove any representation as to his then-employment status with JAVS.

Seem clear cut? Not necessarily from a technical law standpoint (why does the law so often get in the way of you running your business?), as the court dismissed the fraud claim despite Light’s reference to being an employee of JAVS even after his termination. The problem was that, under Kentucky law, a fraudulent misrepresentation claim required proof that the company was defrauded by the LinkedIn representation. Here, at best, JAVS was alleging that third parties and the public would have been defrauded.  As a result, Kentucky law offered no legal solace.

Employer Take Away: What should you as an employer take away from this development?

If your company’s office is in Kentucky, maybe not much. But for the rest of you, there are some valuable reminders here.

Whether or not you ultimately take any action based on what you learn (and that should be the subject of a different, and detailed discussion), your company should continue to mine the social media trails of any employees who leave your employ. First: just because they don’t appear to be disgruntled when they leave, it doesn’t mean that your valuable interests are not put at risk, even unintentionally. Has your employee disclosed information online that the company considers to be highly proprietary or trade secret information? Has your employee made statements that would be considered defamatory, or in violation of a non-compete or non-solicitation agreement?

Second: just because Kentucky law may not provide a common law remedy to the problem in this case (at least based on the arguments raised by the parties in this case), it doesn’t mean that the jurisdiction in which you conduct business does not. There are many reasons not to be complacent (or even complicit?) when a former employee says or does something through social media that threatens your trademark or trade secrets. Your jurisdiction may recognize a fraud-based claim under these facts, or perhaps an alternative common law or statutory theory worth pursuing.

For as we have said before, the worst thing you can do is close your eyes and pretend that social media does not exist.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.